People v. Sinclair

Sep 27, 1996
Versions:231 A.D.2d 926
647 N.Y.S.2d 896
1996 N.Y. App. Div. LEXIS 10829

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: There is no merit to the contention that reversal is required because, during his summation, the prosecutor improperly characterized defendant as a liar. Defense counsel raised the issue of witness credibility in his summation, and the discussion of that issue by the prosecutor in his summation constituted a fair response that did not exceed the bounds of legitimate advocacy (see, People v Russo, 201 AD2d 512, affd 85 NY2d 872; People v Thomas, 186 AD2d 602, Iv denied 81 NY2d 795).

We also reject the contention that County Court erred in sentencing defendant without the benefit of"an updated presentence investigation report. An updated report is not required where the court has the benefit of a pre-plea report and a presentence memorandum prepared by defense counsel and is otherwise ''fully familiar with any changes in defendant’s status, conduct or condition since the original report was prepared” (People v Schalk, 198 AD2d 915, lv denied 82 NY2d 930; see also, People v Skinner, 222 AD2d 1108, lv denied 88 NY2d 885).

Defendant was convicted of two counts each of robbery in the first and second degrees. The court sentenced him to concurrent indeterminate terms of incarceration of 8 to 16 years on each count of robbery in the first degree and 5 to 15 years on each count of robbery in the second degree. We conclude that the sentence is unduly harsh and severe. Defendant had no criminal history and expressed remorse for his participation in the crimes. Numerous letters submitted to the court attested to defendant’s character and prospect for rehabilitation. As a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]), we modify the judgment by reducing defendant’s sentence to 6 to 12 years of incarceration on each count of robbery in the first degree and 4 to 12 years of incarceration on each count of robbery in the second degree. (Appeal from Judgment of Monroe County Court, Marks, J.— Robbery, 1st Degree.) Present—Denman, P. J., Green, Wesley, Balio and Davis, JJ.